Law, Order & Bathroom Rights in New York State

This month marks the two-year anniversary of Obergefell v. Hodges, the landmark United States Supreme Court case which held that same-sex couples had a fundamental right to marry. But the day before the ruling, the Gender Expression Non-Discrimination Act (GENDA), which would have protected people from harassment or discrimination on the basis of gender identity, transgender status and gender dysphoria as they try to obtain housing, employment, education, public accommodations and credit failed for the eighth straight year in New York state legislature. On April 25, 2017, it again failed in committee.

It may come as surprise to those who view New York as a more progressive state than say, North Carolina. The latter was thrust into the national spotlight in May 2016 when Governor Pat McCrory signed the Public Facilities Privacy & Security Act, which states that individuals must use restrooms and changing facilities that correspond to the sex identified on their birth certificate. Afterwards, Bruce Springsteen and the NCAA were among several to refuse to host events in the state.

As demands for equality grow louder, transgender rights have been called the next frontier in human rights. Thomas Wassel, a partner at Garden City-based firm Cullen & Dykman, separated rhetoric from reality.

Where does Long Island stand on bathroom laws and public school?New York State Human Rights Law and decisions of New York state courts are much broader than federal and North Carolina protections. Under New York law, it is highly likely that a transgender individual would be able to use the bathroom to which they identify. [Governor Andrew Cuomo and Attorney General Eric T. Schneiderman vowed to uphold the rights of transgender students from discrimination and harassment in February after President Donald Trump rolled back protections for transgender studentsto be able to use public restrooms that matched their gender identities.]

Why is it so important for a transgender person to use the bathroom that corresponds to their gender identity?If you were told that you may identify as a woman, dress as a woman, but have to use the men’s room, there’s a disconnect there and in many ways it’s a disrespect of who you are.

There are people who fear it will open the door for attacks and harassment. Is there a compromise?One compromise is to make all bathrooms uni-gender or any gender to eliminate men’s and women’s rooms. I like to say I have three bathrooms in my house and they’re open to any gender. In many facilities where they have single-stall bathrooms, they are open to both male and female because there’s only one person in there at once. The opponents of the use of bathrooms on a gender identification basis…they sort of create this notion that when one goes into the bathroom one is going to be assaulted or harassed. To my knowledge, a transgender individual has not harassed someone else. In fact, it’s more likely to be the other way around. [In March, CNN found only one case of a Seattle man who allegedly undressed in a women’s locker room and cited Washington’s anti-discrimination law as motivation. The network could not find any other correlation between these laws and a spike in assaults nationwide. By contrast, a 2013 UCLA Williams Institute survey of transgender individuals found that 70 percent of respondents reported being denied access, harassed or assaulted in public restrooms.]

Why wouldn’t a company do a gender neutral bathroom?A company might suggest it makes employees and customers uncomfortable. But when you’re dealing with discrimination law, that’s not an acceptable answer. It’s no more acceptable to say, “I don’t want to hire black tellers because my customers only want to deal with white people.”

GENDA has failed several years in a row in New York state. What, if any, rights to transgender individuals have when it comes to housing, employment, education and public accommodations?Gender identity and expression is not a protected class in the human law. Under the existing text of the New York Human Rights Law, [I think] a court would find this covered under a matter of interpretation. The courts tend to broadly interpret these types of issues. It would be better for transgender individuals to have this explicitly stated in the law but I’m not prepared to say they have no protections.

But judges can change, courts can change and the interpretations of the law can change.That’s correct. We talk about sexual harassment and we know it’s against the law and violates federal law. But sexual harassment is not mentioned in federal law. It’s been interpreted to violate federal law because it’s discrimination on the basis of sex and sex is specifically mentioned. Since sexual orientation and gender are already protected under New York state law, it can be argued even now you can’t discriminate on the basis of gender and that means gender identity. That would be an argument. But it would be better to remove all doubt.

Why would something like GENDA fail if New York is so progressive?Social change does not take place over night, even in a progressive place. If you compare New York City with [somewhere upstate], you’ll find different demographics and opinions on social matters. Representatives represent different constituencies. New York doesn’t speak with one voice.

What hope do transgender individuals have to gain more legal protections at the federal level under the current administration?I don’t see any reasonable possibility that this Congress or President is in any way interested in passing a bill protecting people on the basis of gender identity…But it could indeed be a surprise.

Gender is being seen as a spectrum and people are identifying as non-binary and intersex. Do you foresee this becoming part of the national conversation?I don’t see it as something that our legislative branches are going to jump on the bandwagon and enact anything for anytime soon. Stonewall happened less than 50 years ago and 30 and 40 years ago and even more recently, homosexual activity was outlawed in states and considered a social stigma and still is in many places in this country. Transgender issues are, in my mind, several steps behind that in terms of acceptability.

Oregon became the first state to allow people to choose a non-binary gender for ID cards.This could be an outlier, or it could be the start of a trend. My best guess is that Oregon may be followed by some progressive states in time but that not many states will not follow. I have no way of predicting which state might be next. New York could be one, but I know of no pending or proposed legislation. At the present time, by my count, only 20 states, plus the District of Columbia and the territories of Puerto Rico and Guam, provide protections against employment discrimination on the basis of both sexual orientation and gender identity. More than 20 states provide little or no protections for any type of sexual orientation discrimination.

Though lesbians, gays and bisexuals may be a step ahead in terms of human rights, did they take two steps back under Trump? lipulse.com explores on Monday, June 26.